Mustafa Hajili and Others v. Azerbaijan (Applications nos. 69483/13 and 2 others)
A selection of key paragraphs can be found below the judgement.
62. Thus, in applications nos. 76319/13 and 30456/14 the authorities failed to take into account the fact that a normal exercise of the right to peaceful public assembly, a gathering of a number of individuals in a public place, inevitably causes disruption to people’s ordinary lives to some extent. In the Court’s view, even if there was some evidence that the assemblies planned by the applicants would cause serious problems to the free movement of people and transport, that element alone (by itself) could not serve as a sufficient reason for the BCEA to ban the holding of the assemblies at their planned locations. The purpose of the prior notification and authorisation procedure provided for under the domestic law was precisely to enable the BCEA to take measures to accommodate the planned assemblies. The BCEA could have eliminated or minimised the negative effects (if any) of the assemblies on the free movement of people and transport by applying such measures as, for example, informing the public about the upcoming assemblies, putting road diversions in place, and ensuring the presence of the police for crowd control and to duly facilitate the conduct of the assemblies.
63. Furthermore, the Court reiterates that in order to comply with the requirement of proportionality and to strike a fair balance between the competing interests at stake the authorities normally should, inter alia, consider less intrusive measures before refusing to authorise an assembly. Measures such as suggesting to the organisers that they change the place, date and/or time of an assembly, shorten its duration or limit the number of participants, could under certain circumstances be considered as more proportionate measures than an outright ban. However, in the present case, by simply refusing to authorise the assembly in application no. 69483/13 and by suggesting to the applicants in applications nos. 76319/13 and 30456/14 that they conduct the assemblies in the 20th residential area of the Sabail district, the BCEA failed to put forward less intrusive measures.
65. The Court notes secondly that in application no. 30456/14, the planned location was crucial for the purpose of the assembly, since the demands that the participants intended to voice were related to, and addressed to, the Parliament. Holding the assembly in question on the grounds of a driving school located on the outskirts of Baku could not therefore be considered as an acceptable alternative. Nevertheless, the BCEA failed to take that issue into consideration. In addition, the domestic courts in their turn failed to address the applicant’s important and pertinent arguments (see paragraph 23 above) in that regard.
66. In all three applications the authorities also failed to take into consideration the fact that the assemblies in question were planned by the applicants as members of a political group, the Public Chamber, and that the purpose of the assemblies was to protest against, manifest views on, and make demands about, various issues of a political nature which were in the public interest. A decision whether or not to authorise such assemblies should have been based on due recognition of the privileged protection under the Convention of political speech, debate on questions of public interest and the peaceful manifestation of opinions on such matters, and remained within the authorities’ narrow margin of appreciation in restricting political speech (see, mutatis mutandis, Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 133, 15 November 2018).
68. In view of the above, the Court finds that the refusals to authorise the public assemblies did not appear to meet the lawfulness requirement of Article 11 and were not necessary in a democratic society.
69. There has accordingly been a violation of Article 11 of the Convention.